6. Deeds Flashcards
Deed/Conveyance
= signed legal document used to transfer ownership/interest in property from grantor to grantee
- evidence of title
- legally binding when: signed by both parties, notarized, officially recorded with municipality
- 3 Types Grant Deed, Quitclaim Deed, Warranty Deed
Title
= actual lawful ownership of real property
- concept that grants right to ownership
- title is transferred from grantor to grantee within a deed
- actual Title: will be transferred by deed at closing
- Equitable Title: interest in property created on the execution of a valid sales contract
Elements that make deed valid
- in writing
- Grantor must be of sound mind and 18yo (NY: address if deed is recorded)
- Grantee must be specific: complete and proper name, designations like Mrs, Mr, Dr. (Ny: address if deed is recorded)
- Act of conveyance= granting clause: legal clause in deed, that states grantor intends to convey title, includes terms like give, grant, assign, convey, warrant, sell
- Consideration: something of value that is exchanged between parties (money, goods, rights), exact amount doesn’t need to be stated (except in executors or trustee deed)
- The legal description: $291 deeds must describe the property being conveyed (may include parcel number, metes and bounds, lot and block)
- Habendum clause= to have and to hold clause: describes the type of estate granted, must agree with granting clause
- Limitations: how property may or may not be used (restrictions imposed by farming, developer, planned community, etc)
- Exceptions and Reservations = “Subject to” clause: anything that affects property, e.g. easements
- Signature of grantor: signed in presence of notary public, grantees do not need to sign
- Delivery and Acceptance: must be delivered by grantor and accepted by grantee
- Acknowledge: providing signature in presence of notary public
- Recording: not required for deed to be valid but protects grantee, to be officially recorded deed must contain: notary public seal, certificate of address for tax purpose, evidence of real estate transfer of tax
Types of deeds
- Full Covenant and Warranty Deed
- Bargain and Sale Deed
- Bargain and Sale Deed with covenants/ special warranty Deed
- Quit claim Deed
- Judicial Deed
Full Covenant and Warranty Deed
- Guarantee will receive ownership free of encumbrances and burdens
- greatest guarantee of any title
- Contains:
- Covenant against encumbrances = promise to guarantee that property is free of liens, mortgages, taxes etc.
- Covenant of further assurances= promise to guarantee that grantor will assist if issue should arise
- Covenant of right to convey= ensures that grantor owns land and is legally entitled to transfer property to grantee
- Covenant of quiet enjoyment = guarantee that no third party will claim property),
- Covenant of seizin = assurance that grantor holds title
- Covenant of warranty forever = promise of compensation if title is discovered as defective later on, grantor will defend grantees interests against claims of title - most important
Bargain and Sale Deed
- Grantor owns property and can sell it but no warranties
Special Warranty Deed
= Bargain and sale deed with covenants
- Commonly used in NYC
- Guarantees that grantor has not encumbered property except as stated in deed
- Grantors warrant only for the time they owned the property, not before
Quit claim Deed/ Deed of release
- Transfer property in non sale situations, e.g. gifting of property between family members , adding /removing spouse
- no warranties
- conveys whatever right/title/interest grantor holds
- used to remedy clouds on title
Judicial Deed
- Court order
- Typically no covenants or warranties
- Administrator Deed: person appointed by court to convey property of deceased
- Executor’s deed: convey property of deceased
- Guardian’s Deed: convey property by a court appointed representative (e.g. transfer property owned by minor)
- Referee’s Deed: bankruptcy or foreclosure
- Sheriff’s deed: sheriff’s sale at foreclosure
Alienation
=Process of transferring real property
- property is alienable = can be sold or transferred without restrictions, 3 ways to transfer: Voluntary Alienation, Involuntary Alienation, Devise or Descent
Voluntary Alienation
= unforced, willing transfer of sale or gift
- can be accomplished via:
a. Dedication: property has been dedicated for public use
b. gift: deed and title transferred without compensation
c. Grant: government transfers title to individual
d. Sale
Involuntary Alienation
= transfer of title without owner’s consent
a. Adverse possession: adverse possessor may be granted title if owner can’t be found or reasonable belief property belongs to adverse possessor (10years, notorious open, etc.)
b. Accession: artificial accession when someone acquires property due to his labor on land, accretion is when someone acquires property due to force of nature (Alluvion= land added/Avulsion= land lost), Reliction when water receded and more land is exposed
c. Eminent Domain: government takes property for public use
d. Foreclosure: property will be sold, proceedings used to pay liens and judgments
Accretion
= someone acquires property due to force of nature (Alluvion= land added/Avulsion= land lost), Reliction when water receded and more land is exposed
Devise or Descent
a. Devise: transfer property via will (testate), heirs who will get it are called devisees, process is called probate
b. Descent: when owner passes without will (intestate succession), court distributes property to natural heirs (spouses, children, relatives), no heirs property goes to state, process is called escheat
probate
= process by which property of a deceased is distributed if he has a will
